Despite Buffalo Mayor Sean Ryan’s characterization that the city’s legal fight with Senecas over construction of a gas station is "just a run of the mill property issue," one of New York’s foremost Indian Law attorneys believes it’s anything but.
Joe Heath is a Cornell Law professor who has served as the Onondaga Nation’s general counsel for more than 40 years.
"Relations to Indian nations and land are never run of the mill, and should not be," said Heath. "To diminish the dispute to that level is very problematic. I was going to say insulting, but we're pretty used to that representing Indigenous nations."
Heath has been in and out of courtrooms since he started law school at the University at Buffalo in 1971. His career has focused on civil rights and Indian Law — that’s what the federal government calls it.
Among the cases cited by attorneys for the City of Buffalo to support their lawsuit attempting to stop construction of a Seneca Nation gas station near the Buffalo River is City of Sherill v. Oneida Nation. That Supreme Court decision came down in 2005. In it, Justice Ruth Bader Ginsburg put a quash on an Oneida Nation land claim and others in New York by using a 15th century edict by the pope in her majority opinion called the Doctrine of Christian Discovery.
"What it says is that the Indians never owned their land; they were not civilized enough to own the land," explained Heath. "They were treated only as flora and fauna, and that once a Christian European nation landed and made a claim, all of the title to the property immediately reverted to the Christian nation."
The doctrine’s use in U.S. courtrooms isn’t new, it was first used in 1823, but Heath said that doesn’t make it anymore right in the 21st century.
"Shameful that a racist concept like the Doctrine of Christian Discovery is still being invoked," he said.
The Vatican itself even repudiated the series of edicts formally in 2023, amid pressure to improve conditions and relations with Indigenous people across the globe.
"The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political 'doctrine of discovery,'" said a Vatican statement shared with NPR.
The city’s first lawsuit over construction and zoning wasn’t actually filed against the Seneca Nation. It was filed against the individual Seneca councilors and president. To a layman it’s odd.
Here’s an exchange between BTPM News and Buffalo deputy counsel Bill Rossi:
"The defendants in the state court complaint are individual council members sued in their individual capacity under Ex parte Young...," said Rossi.
"Why not sue the [Seneca Nation]? Like the actual nation itself in court?," BTPM News assistant managing editor Ryan Zunner said.
"Why not sue the entire nation?," Rossi repeated back.
"Yes," Zunner said
"Well, we don't have a claim against the nation," he said.
Heath, who is not involved in the Buffalo case, believes it was for a more strategic reason, and one of the reasons the Senecas have requested a move from state to federal court.
"In federal court [Seneca officials] will probably say we're sovereign, and therefore you can't sue us under the decisions that followed the Sherill case," Heath opined. "Indigenous nations officials are also protected by the nation's sovereignty, and so it would be very difficult to understand how [the city is] going to prove that they don't have sovereign immunity."
Native nations can initiate lawsuits as a plaintiff, but can only be a collective defendant in court by act of Congress or by their own waiver.
There’s also the separate lawsuit filed by the city against the Department of the Interior and other federal agencies for their 2023 decision to put the Miami Street parcels into restricted-fee status.
“Just throw everything you have up against the wall and see if anything sticks," Heath said.
According to the Interior Department, the parcels were put into that status under the terms of the 1990 Seneca Settlement Act. Heath said courts have consistently failed Native people in righting past injustices, but true negotiations like the Seneca Settlement Act are examples of attempts at honest reconciliation.
"The Settlement [Act] came out of a very very difficult situation where the city of Salamanca is actually Seneca territory, but for over 100 years it's been lived in by non-Senecas, and so how do you resolve that problem? What they did was they sat down, and they came up with the Settlement Act," he said. "That provided for some avenue for Senecas to regain more territory, and that's the issue that I think will be discussed if this case survives quick dismissal, it will certainly become litigated a great deal."
Construction at the Miami Street parcel continues.
